R v EGC

Where an alleged offence was committed by a child aged 10 to 14 before abolition of doli incapax, the jury must be directed to decide whether the child knew that the conduct was seriously wrong, rather than merely naughty or mischievous. Clear positive evidence independent of the act itself is required to prove that guilty knowledge.

A defective direction on one count does not automatically make a conviction on another count unsafe. The question is whether there was a real possibility that the jury used the affected count as support for the other conviction. Clear limiting directions may eliminate that possibility.

The applicant was convicted at the Crown Court at Norwich of sexual assault on count 2 and indecent assault on count 3. He was acquitted of rape on count 1.

Count 3 concerned alleged conduct when the applicant was aged between 10 and 12. The indictment period was enlarged during the trial to include a period before the abolition of the rebuttable presumption of doli incapax by section 34 of the Crime and Disorder Act 1998. The judge directed the jury about age, development, maturity and intention, but not that it had to be sure that the applicant knew the conduct was seriously wrong or that independent evidence supported that conclusion.

The applicant also argued that the defective direction rendered the conviction on count 2 unsafe because the jury might have relied on count 3 when considering the adult sexual assault. The central issues were whether count 3 was unsafe and whether any error had affected count 2.

The court granted leave to appeal against conviction on count 3, allowed the appeal and quashed that conviction. It refused leave to appeal against conviction on count 2.

1. For an alleged offence committed while the rebuttable presumption of doli incapax applied, the jury had to be sure that the child knew the conduct was seriously wrong, as distinct from ordinary naughtiness or childish mischief. There had to be clear positive evidence of guilty knowledge distinct from the doing of the act itself. That requirement was stated in C (A Minor) v DPP [1996] 1 AC 38 and affirmed in R v DM [2016] EWCA Crim 674 and the other authorities referred to.
2. The direction given on count 3 did not satisfy that requirement. It addressed the applicant’s age, development, maturity and intention, but did not require the jury to consider whether he knew the conduct was seriously wrong or whether independent evidence proved that guilty knowledge. The omission was particularly important because the applicant might have been only 10 years old when the conduct occurred.
3. The error did not make count 2 unsafe. The judge clearly directed the jury that the applicant’s admitted sexual interest in female children was relevant, if at all, to count 2, where he was an adult, and was irrelevant to count 3. Given those directions and the clear evidence of an adult sexual interest, there was no real possibility that the jury used the conduct in count 3, or the defective conviction on that count, as material support for count 2.
4. The conviction on count 3 was quashed. Leave to appeal against count 2 was refused.

1. Court of Appeal (Criminal Division): In [2026] EWCA Crim 342, granted leave to appeal against count 3, allowed the appeal and quashed that conviction. Leave to appeal against count 2 was refused.
2. Crown Court at Norwich: Following a 12-day trial, convicted the applicant on counts 2 and 3 and acquitted him on count 1.